Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s January Term, which begins Monday, January 10, 2017, with oral arguments scheduled for January 10, 11, 12 and 18, 2017. A total of 9 cases will be heard – 5 civil and 4 criminal. The following civil cases are scheduled for argument this Term:
In re Marriage of Heroy—No. 120205—January 11
The City of Chicago v. Alexander—No. 120350—January 11
The Carle Foundation v. Cunningham Township—Nos. 120427, 120433 cons.—January 12
Chultem v. Ticor Title Insurance Co.—No. 120448—January 12
Barr v. Cunningham—No. 120751—January 18
Below is a summary for one of these civil cases, In re Marriage of Heroy. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.
In re Marriage of Heroy
The issue in this case involves what factors are to be considered in determining whether to award attorney’s fees to a party in a divorce proceeding and whether a party must show her inability to pay her own fees in order to receive them from the other party.
In 2006, and as part of the parties’ divorce, the trial court awarded Donna $35,000 per month in permanent maintenance, plus $4,500 per month in retroactive temporary maintenance in addition to the $6,000 per month she had been receiving prior to the entry of judgment. On appeal, the appellate court affirmed the trial court’s award of $35,000 per month in permanent maintenance. In 2009, David filed a petition requesting the termination or modification of Donna’s permanent maintenance award due to a decrease in his income, a decrease in his net worth, and Donna’s failure to make any reasonable efforts to become self-supporting since the dissolution judgment. After an extensive hearing, the trial court found that David had met his burden of establishing a substantial change in circumstances as required by Section 510 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510), entitling him to modification of the permanent maintenance payments to Donna, but rejected David’s request to terminate the payments. The court lowered Donna’s permanent maintenance payments to $27,500 per month. The court also ordered David to contribute $125,000 toward Donna’s attorney’s fees incurred during the maintenance modification proceedings. After David filed a notice of appeal, Donna sought an order requiring David to make a contribution to her prospective attorney’s fees related to the appeal. The trial court granted Donna’s motion and ordered David to pay $35,000 toward her prospective attorney’s fees.
The Illinois Appellate Court first rejected David’s argument that the trial court should have placed more emphasis on Donna’s failure to make reasonable efforts to become financially self-supporting, finding that, since the trial court in its 2006 order addressed Donna’s self-sufficiency and her ability to support herself in the lifestyle she enjoyed during her marriage in awarding permanent maintenance, those issues were res judicata. The court then reviewed the record and determined that the trial court made a calculation error and had intended to make Donna’s permanent maintenance award to be 25% of David’s cash flow, which would be $25,745 in monthly maintenance to Donna, and not $27,500. The appellate court vacated the trial court’s award of modified permanent maintenance and remanded the case to the trial court with directions to enter a modified permanent maintenance award of 25% of David’s cash flow. The court also reversed the order requiring David to pay some of Donna’s attorney’s fees, citing In re Marriage of Schneider, 214 Ill. 2d 152 (2005), and reasoning that the question was not whether David had more financial resources than Donna, but whether Donna had the ability to pay her own fees without depleting her assets to such an extent as to undermine her financial stability. As the record was devoid of any evidence that payment of her attorney’s fees would undermine Donna’s financial stability, the court held that the record did not support the award of attorney’s fees to Donna.